Corporate Censorship and Its Troubling Implications for the First Amendment
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DePaul Law Review Volume 55 Issue 1 Fall 2005 Article 3 Can You Hear Me Now?- Corporate Censorship and Its Troubling Implications for the First Amendment William A. Wines Terence J. Lau Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation William A. Wines & Terence J. Lau, Can You Hear Me Now?- Corporate Censorship and Its Troubling Implications for the First Amendment , 55 DePaul L. Rev. 119 (2005) Available at: https://via.library.depaul.edu/law-review/vol55/iss1/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. CAN YOU HEAR ME NOW?-CORPORATE CENSORSHIP AND ITS TROUBLING IMPLICATIONS FOR THE FIRST AMENDMENT William A. Wines & Terence J. Lau1 "[M]oney doesn't talk, it swears." -Bob Dylan2 "The problem of power is ... how to get men of power to live for the public rather than off the public." 3 -Robert F. Kennedy "[A] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . .. ." 4 -Justice William Brennan INTRODUCTION The "profound national commitment" to "debate on public issues" that Justice Brennan lovingly described in 1964 has recently been forced on life support. 5 Take, for example, Bill Maher's talk show, Politically Incorrect, which appeared for a few years on the ABC net- work. His show was cancelled by ABC in the summer of 20026 when several advertisers pulled out after Mr. Maher's comments about Sep- 1. William A. Wines is an Associate Professor in the Department of Finance at Miami Univer- sity in Ohio. Terrence J. Lau is an Assistant Professor in the Management and Marketing De- partment at the University of Ohio. 2. Boa DYLAN, It's Alright, Ma (I'm Only Bleeding), on BRINGING IT ALL BACK HOME (Sony Records 1965). The entire stanza in which the quoted line appears is: Old lady judges watch people in pairs Limited in sex, they dare To push fake morals, insult and stare While money doesn't talk, it swears Obscenity, who really cares Propaganda, all is phony. Id. (emphasis added). 3. JAMES L. FISHER, POWER OF THE PRESIDENCY 27 (1984) (quoting Robert F. Kennedy). 4. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Justice Brennan further described protected speech as "vehement, caustic, and sometimes unpleasantly sharp attacks on govern- ment and public officials." Id. 5. Id. 6. See Roger Catlin, Maher Moves Into 'Real Time' on HBO, HARTFORD COURANT, Feb. 21, 2003, available at www.lexisnexis.com. DEPAUL LAW REVIEW [Vol. 55:119 tember 11, 2001 drew criticism from the White House. 7 Apparently, the White House indirectly achieved a goal (the silencing of a political critic)8 which it was constitutionally prohibited from accomplishing di- rectly. For those who love free expression, such conduct invites scru- tiny, whether or not one agrees with Mr. Maher's views.9 This silencing of critics appears to be widespread if one looks to corporate conduct.10 In a very real sense, the institution of law has become an accessory. Consider, for example, the use of SLAPP suits by large corporations to silence critics.1 SLAPP is an acronym for "strategic lawsuits against public participation. ' 12 In addition to si- lencing critics, a popular fashion is to restrict the flow of information to the American people, or certain segments of the American people, in order to modify their behavior or to conform their opinions. This "screening of information" is insidious and undermines what it means to be a free people in the democratic sense. 13 Much of the screening and silencing, although certainly not all, is a product of the abuse of vast economic powers by wealthy interests. Since September 11, 2001, several federal government officials have used the tragic events of that day and our increased fear of interna- tional terrorism as a shield to protect themselves from criticism 1 4 and to chill open discussion of the causes for the losses incurred on Sep- 7. Frank Rich, Apres Janet, A Deluge, N.Y. TIMES, Mar. 21, 2004, available at 2004 WLNR 5387780. 8. Mr. Maher was not permanently silenced. He returned to television, albeit not network television, with a new show on HBO entitled Real Time With Bill Maher on Friday, February 21, 2003 at an 11:00 p.m. time slot. See id. 9. The nature of Mr. Maher's views may be suggested by the title of his recent book, When You Ride Alone You Ride With Bin Laden, a collection of his thoughts about the war on terror- ism. See Catlin, supra note 6. 10. See, e.g., discussion infra Part I.E. 11. RALPH NADER & WESLEY J. SMITH, No CONTEST: CORPORATE LAWYERS AND THE PER- VERSION OF JUSTICE IN AMERICA 158-92 (1996). 12. Id. at 162-63. 13. The Supreme Court has cast a suspicious eye on governmental attempts to screen informa- tion prior to publication. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971) (upholding the right of the press to publish information of great public importance even when the information is stolen). But see United States v. Am. Library Ass'n, 539 U.S. 194 (2003). In upholding the constitutionality of the Children's Internet Protection Act (which required public libraries to install software to filter or block obscene or pornographic computer images and to prevent minors from accessing material that was deemed harmful to them), the Supreme Court dismissed the argument that the law was a prior restraint on adult speech, holding instead that the library's decision to use filtering software was a collection decision. See id. at 209 n.4. 14. Consider, for example, White House press spokesman Ari Fleischer's exhortation to Americans to "watch what they say, watch what they do." Celestine Bohlen, In New War on Terrorism, Words are Weapons, Too, N.Y. TIMES, Sept. 29, 2001, at All. 2005] CORPORATE CENSORSHIP tember 11.15 This psychological chilling of open expression was also accelerated by the Bush Administration's decision to invade Iraq for the stated goals of ousting Saddam Hussein's regime and destroying weapons of mass destruction. 16 Some reports on cable news suggest that Peter Arnett's job at CBS was "collateral damage" of a head- hunting mission by the White House after he criticized the U.S. war plan on Iraqi television. 17 Even the absolute right of a client to com- municate with his attorney was unilaterally suspended by the Attor- ney General in the days following September 11.18 The result has been disheartening to those who cherish open and robust discussion of matters of public import. Globally, there seems to be decreasing tolerance for diverse and critical opinions. The daytime murder on a public street in Amster- dam, Holland, of Theo Van Gogh, the great grandson of the world- renowned Dutch artist anecdotally demonstrates this trend. 19 Van Gogh, a filmmaker, received death threats after the August airing of the movie Submission, which told the fictional story of a Muslim woman forced into a violent marriage, raped by a relative, and bru- tally punished for adultery.20 Van Gogh and a right-wing Dutch politi- cian, who had renounced the Islamic faith of her birth, made the film. 21 Witnesses said the attacker fired six shots, stabbed Van Gogh, and then stood over him to make sure he was dead. 22 If the outrageous act turns out to be what it appears-namely the killing of one man by another for the opinions he expressed-it is reminiscent of the response to the publication of The Satanic Verses by Salman Rushdie in 1988.23 Rushdie's book prompted protests and 15. For further discussion on the aftermath of the September 11 attacks and its effects on the First Amendment, see John W. Whitehead & Steven H. Aden, Forfeiting "EnduringFreedom" for "Homeland Security": A ConstitutionalAnalysis of the USA PATRIOT Act and the Justice Department's Anti-Terrorism Initiatives, 51 AM. U. L. REV. 1081, 1096 (2002). 16. Rather than stopping at discouraging open dissent, the government has even gone so far as to produce fictitious news reports about how well the government is doing in areas such as airport security and bringing democracy to Iraq. The reports were broadcast as regular news segments without being identified as government-produced video. See David Barstow & Robin Stein, Under Bush, a New Age of Prepackaged News, N.Y. TIMES, Mar. 13, 2005, at Al. 17. See David Usborne, The Iraq Conflict: NBC Sacks Veteran War Reporter Over Iraqi TV Interview, INDEP., Apr. 1, 2003, availableat www.lexisnexis.com. 18. See Andrew P. Napolitano, No Defense, N.Y. TIMES, Feb. 17, 2005, at A29. 19. Glenn Frankel, ControversialDutch Filmmaker is Slain; Van Gogh Angered Muslims with Criticism, WASH. POST, Nov. 3, 2004, at A4. 20. Id. 21. Id. 22. Id. 23. See Barton Gellman, Rushdie Case Termed 'Finished';Iran's President Discusses Author's Death Sentence, Talks with U.S., WASH. POST, Sept. 22, 1998, at A21. DEPAUL LAW REVIEW [Vol. 55:119 book burnings. 24 Iran's Ayatollah Khomeini proclaimed the book a work of blasphemy and condemned Rushdie to death for insulting Is- lam.25 Eager followers of the Ayatollah put a bounty on Rushdie's head.26 Perhaps, looking at just these two cases from many, it is possi- ble that the global rise of fundamentalism among the world's major religions has led to an alarming certainty that allows people to con- demn expression they disapprove of and even to kill others simply for not agreeing with them.